Matai may parcel out communal land to those w ho serve him but such parceling out does not terminate matai'spule over the property.

E.C. JOHNSON, Chief Justice; and LIUFAU, District Judge.

DECISION

In 1930 before the High Court the ownership of the land Falemalama located in Nuuuli then being in dispute the said case came on for a hearing and Levu was decreed to have the pulesili of this tract of land.

On August 23, 1932 there was filed with the Court a memorandum for registration with reference to certain parts of this land wherein Levu said of his own "free will and satisfaction about Gauta, Vaa and Pisa, whose names are shown in the plan of the land Falemalama that they are the true heirs of the name Levu, and I do agree to divide up the land amongst these heirs so that my brothers and children will have the same rights to the part of the land assigned to them as does other heirs claiming portions of said land."

In accordance with this statement filed by Levu and witnesseth by the Clerk of the High Court, Levu did then and there proceed to give to one Pisa now a FitaFita a certain tract of land. At that time no definite boundaries were set forth showing what area of land Levu had given to Pisa. Because of this, the lack of definite boundaries, a dispute arose between Solaita a full blooded brother of Levu and Pisa as to where these boundaries should be. It appears from uncontradicted testimony that Levu gave Solaita his brother permission to erect a fale immediately behind Levu's guest house. Solaita proceeded to build his fale in this area of land and Pisa objected on the ground [1ASR522] that location of Solaita'sfale was in the area of land given him by Levu under a memorandum of August 23, 1932 heretofore referred to. On the 26th day of April 1933 the High Court sat in Nuuuli for the purpose of definitely determining the boundaries of the land given to Pisa by Levu and by Levu's testimony acquiesced into not only by Pisa but by Solaita the boundaries of this said piece of land given by Levu to Pisa were determined as follows :

"Beginning at a point on the beach 24 feet from high water mark the land which Levu gave to Pisa then extended a distance of 170 feet from the said high water mark inland and towards the village malae alongside the land Taito. From this point of 170 feet inland from high water mark turning to the right for a distance then of 40 feet from the Taito boundary this far inland Levu testified that this represented the inland width of the land which he gave Pisa. Pisa and Solaita both agree that this distance is correct. This 40 foot extension from the land Taito is within a few feet of the back of the present site of Levu's guest house. Then again turning to the right from this 40 foot stake boundary now made and for a distance of 170 feet back towards the sea and to the high water mark Levu testified represented the portion of the land given by him to Pisa. However the distance from the original starting point paralleling the land Taito to the last mentioned 170 foot boundary stake coming down to the sea is 52 feet. Therefor to recapitulate Pisa's land given to him by Levu represents approximately 170 feet from the starting point paralleling land Taito. Then 40 feet at angles and just behind Levu's guest house then approximately 170 feet coming back seaward then 52 feet at right angles to the starting point. It was observed carefully scrutinizing these boundary lines that the proposed base of Solaita's house extended a distance of two or three feet over into Pisa's land. Whereupon Solaita was given the option of either making his peace with Pisa and have Pisa give him permission to use this small footage for the erection of his fale or to build his fale in such a way that his said house would not encroach upon Pisa's land. He testified that he would assure the Court that he would erect his fale in such a way that it would not encroach upon Pisa's land. Pisa acquiesced and agreed in this statement."

It appeared in the testimony that Fuatau a son of Levu had been given permission by Levu and Pisa to erect a fale[1ASR523] some two or three years ago in part of Pisa's land. Pisa testified that he had agreed to this and that henceforth he would raise no objection or bring no action to have Fuatau remove his fale from part of the land now claimed by Pisa.

The boundaries as heretofor set forth of this part of Falemalama belonging to Pisa have been indicated by long stakes driven deep into the ground. No further difficulty should arise over the area of land claimed by Pisa since all parties have agreed that the area set forth represents the true area of the land given by Levy (sic] to Pisa.

The Court recognizes the pulesili of the land Falemalama to be in Levu. Testimony showing that Levu had parceled out of his own free will certain land for certain members of his family. Parceling out of this land by the head matai is in accordance with Samoan customs predicated of course upon the continuation of service rendered to the head matai. By virtue of Levu parceling out certain pieces of this land it does not mean that he or his successor matai in name, gives up irrevocably his pule to this land.

Costs of this action, namely $25.00, will be assessed against the respective parties in the following amounts - Pisa to pay $15.00 and Solaita $10.00.